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The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States

University of Toronto Law Journal, Vol. 49, No. 3, Summer 1999, University of Toronto Press, Copyright

Abstract:

This article provides a framework for addressing concerns about retributive justice in states recovering from national traumas and it uses South Africa's Truth and Reconciliation Commission (TRC) as its focal point. The article begins by providing an overview of the origins and operations of the TRC, and then explores several conceptual and legal challenges that the TRC faced. These challenges are important to understand for two purposes: first, they highlight the probable criticisms that might emerge as other recovering states consider the particularized amnesty proceedings that were the heart of the TRC; and second, they provide a particular illustration of what I call the social expressivist opposition to the TRC. The paper then engages the TRC's justification of the practice of particularized amnesty, a justification that emanates from the TRC's account of truth, reconciliation, and justice. Here, I scrutinize not only the theory of justice propounded by the TRC, but also the theory of restorative justice offered by some of the TRC's most astute defenders. This examination reveals deficiencies that should renew our interest in the conceptual resources inhering in retributivism as a theory of criminal justice.

There is an obvious tension between the TRC's defence of particularized amnesty and the challenges launched against it by those who adhere to the social expressivist view. The paper thus seeks to mediate this conflict by outlining the confrontational conception of retributivism - an account that I offer to answer not only why retribution for wrongdoing is internally justified and obligatory, but why it is also the sole province of the state in modern society. The theory offered here, which is premised on familiar notions of equal human worth and liberty under law, assures that in the face of known wrongdoing, the state responds as our agent to diminish the evidence of unequal liberty claimed by perpetrators through their actions. One conclusion I draw from this theory is that retributivism, once properly understood, need not be viewed as inextricably dependent upon traditional concepts of proportionality. Thus, under certain circumstances, a retributivist vision of punishment can find an authentic expression in particularized amnesty proceedings. In particular, I indicate how the confrontational conception of retributive justice differs from others insofar as it limits what kind of leniency the state may demonstrate in response to gross violations of human rights. In short, the paper defends the thesis that particularized amnesty proceedings are compatible with retributive justice properly understood.